The Supreme Court’s rulings this past week represent an unimaginable extension of judicial activism into key societal issues. The effect on women’s rights and reproductive justice, and the expanded rights to carry guns in public places represent tectonic changes in people’s day-to-day lives; the latest ruling, narrowing EPA’s authority under the Clean Air Act, represents a decisive step accelerating climate change and advancing Earth’s eventual transition to becoming uninhabitable for humans. This judicial act stepped over a new boundary: the regulations at issue had been withdrawn, and the Supreme Court had no EPA regulation to review.
Deference to a regulatory agency’s interpretation of federal environmental laws has been a cornerstone of environmental jurisprudence for over 35 years. Congress’s stated purposes for the Clean Air Act are “to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of the population.” Recognizing that not every form and source of air pollution could be known when the Clean Air Act was passed, Congress gave the Environmental Protection Agency (EPA) the authority to regulate any sources of air pollution that “may reasonably be anticipated to endanger public health or welfare.”
The Supreme Court recognized in 1976 that the Clean Air Act was a “drastic remedy to what was perceived as a serious and otherwise uncheckable problem.” In 1984, the Supreme Court ruled that EPA must conform to any clear unambiguous legal requirements when applying a law, but when the statute is ambiguous, courts should defer to EPA’s interpretation so long as its interpretation is reasonable. The Clean Air Act does not expressly authorize EPA to regulate carbon dioxide, but the Obama administration's EPA interpreted the act to give it authority to regulate major sources of carbon dioxide emissions, based on the clear evidence that these emissions were accelerating climate change, causing innumerable human health effects and massive harm to public welfare from extreme storm events, drought, wildfire, sea level rise, and loss of habitat.